Limits on the Right to Retained Counsel.

Gideon v. Wainwright317 is regarded as having consolidated a right to counsel at trial in the Sixth Amendment, be the trial federal or state or counsel retained or appointed.318 The Sixth Amendment cases, together with pre-Gideon cases that applied due process analysis under the Fourteenth Amendment to state proceedings, point to an unquestioned right to retain counsel for the course of a prosecution, but also to circumstances in which the choice of a particular representative must give way to the right’s fundamental purpose of ensuring the integrity of the adversary trial system.

The pre-Gideon cases often spoke of the right to retain counsel expansively. Thus, in Chandler v. Fretag, when a defendant appearing in court to plead guilty to house-breaking was advised for the first time that, because of three prior convictions, he could be sentenced to life imprisonment as a habitual offender, the court’s denial of his request for a continuance to consult an attorney was a violation of his Fourteenth Amendment due process rights.319 “Regardless of whether petitioner would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified. . . . A necessary corollary is that a defendant must be given a reasonable opportunity to employ and consult with counsel; otherwise, the right to be heard by counsel would be of little worth.”320

Though there is a presumption under the Sixth Amendment that a defendant may retain counsel of choice, the right to choose a particular attorney is not absolute. The prospect of compromised loyalty or competence may be sufficiently immediate and serious for a court to deny a defendant’s selection. In Wheat v. United States, the district court had denied a defendant’s proffered waiver of conflict of interest and refused to allow representation by an attorney who represented the defendant’s co-conspirators in an illegal drug enterprise.321 Upholding the district court’s discretion to disallow representation in instances of actual conflict of interests or serious potential for conflict, the Court mentioned other situations in which a defendant’s choice may not be honored. A defendant, for example, is not entitled to an advocate who is not a member of the bar, nor may a defendant insist on representation by an attorney who denies counsel for financial reasons or otherwise, nor may a defendant demand the services of a lawyer who may be compromised by past or ongoing relationships with the Government.322

The right to retain counsel of choice generally does not bar operation of forfeiture provisions, even if the forfeiture serves to deny to a defendant the wherewithal to employ counsel. In Caplin & Drysdale v. United States,323 the Court upheld a federal statute requiring forfeiture to the government of property and proceeds derived from drug-related crimes constituting a “continuing criminal enterprise,”324 even though a portion of the forfeited assets had been used to retain defense counsel. Although a defendant may spend his own money to employ counsel, the Court declared, “[a] defendant has no Sixth Amendment right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice.”325 Because the statute vests title to the forfeitable assets in the United States at the time of the criminal act,326 the defendant has no right to give them to a “third party” even if the purpose is to exercise a constitutionally protected right.327 Moreover, on the same day Caplin & Drysdale was decided, the Court, in United States v. Monsanto, held that the government may, prior to trial, freeze assets that a defendant needs to hire an attorney if probable cause exists to “believe that the property will ultimately be proved forfeitable.”328 Nonetheless, the holdings from Caplin & Drysdale and Monsanto are limited in that the Court, in Luis v. United States, has held that the Sixth Amendment provides criminal defendants the right to preserve legitimate, untainted assets unrelated to the underlying crime in order to retain counsel of their choice.329

Nevertheless, where the right to be assisted by counsel of one’s choice is wrongly denied, a Sixth Amendment violation occurs regardless of whether the alternate counsel retained was effective, or whether the denial caused prejudice to the defendant.330 Further, because such a denial is not a “trial error” (a constitutional error that occurs during presentation of a case to the jury), but a “structural defect” (a constitutional error that affects the framework of the trial),331 the Court had held that the decision is not subject to a “harmless error” analysis.332


372 U.S. 335 (1963). back
E.g., Wheat v. United States, 486 U.S. 153, 158 (1988). back
348 U.S. 3 (1954). back
348 U.S. at 9, 10. See alsoHouse v. Mayo, 324 U.S. 42 (1945); Hawk v. Olson, 326 U.S. 271 (1945); Reynolds v. Cochran, 365 U.S. 525 (1961). back
486 U.S. 153 (1988). back
486 U.S. at 159. back
491 U.S. 617 (1989). back
21 U.S.C. § 853. back
491 U.S. at 626. back
The statute was interpreted in United States v. Monsanto, 491 U.S. 600 (1989), as requiring forfeiture of all assets derived from the covered offenses, and as making no exception for assets the defendant intends to use for his defense. back
Dissenting Justice Blackmun, joined by Justices Brennan, Marshall, and Stevens, described the Court’s ruling as allowing the Sixth Amendment right to counsel of choice to be “outweighed by a legal fiction.” 491 U.S. at 644 (dissenting from both Caplin & Drysdale and Monsanto). back
Monsanto, 491 U.S. at 615 (“Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent’s possession, based on a finding of probable cause, when we have held that . . . the Government may restrain persons where there is a finding of probable cause to believe that the accused has committed a serious offense.”). A subsequent case held that where a grand jury had returned an indictment based on probable cause, that conclusion was binding on a court during forfeiture proceedings and the defendants do not have a right to have such a conclusion re-examined in a separate judicial hearing in order to unfreeze the assets to pay for their counsel. Kaley v. United States, 571 U.S. ___, No. 12–464, slip op. (2014). back
578 U.S. ___, No. 14–419, slip op. at 1 (2016) (announcing the judgment of the Court). The Court in Luis split as to the reasoning for holding that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice. Four Justices employed a balancing test, weighing the government’s contingent future interest in the untainted assets against the interests in preserving the right to counsel—a right at the “heart of a fair, effective criminal justice system”—in concluding that the defendant had the right to use innocent property to pay a reasonable fee for assistance of counsel. See id. at 11–16 (Breyer, J., joined by Roberts, C.J., Ginsburg & Sotomayor, JJ.). Justice Thomas, in providing the fifth and deciding vote, concurred in judgment only, contending that “textual understanding and history” alone suffice to “establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure potential forfeiture.” See id. at 1 (Thomas, J., concurring); see also id. at 9 (“I cannot go further and endorse the plurality’s atextual balancing analysis.”). back
United States v. Gonzalez-Lopez, 548 U.S. 140, 144–45 (2006). back
Arizona v. Fulminante, 499 U.S. 279, 307–310 (1991). back
Gonzalez-Lopez, 548 U.S. at 148–49. The Court noted that an important component of the finding that denial of the right to choose one’s own counsel was a “structural defect” was the difficulty of assessing the effect of such denial on a trial’s outcome. Id. at 149 n.4. back